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Re: First sale litigation in Germany


From: David Kastrup
Subject: Re: First sale litigation in Germany
Date: Wed, 08 Dec 2010 16:01:28 -0000
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/24.0.50 (gnu/linux)

Hadron<address@hidden> writes:

> David Kastrup <address@hidden> writes:
>
>> Hadron<address@hidden> writes:
>>
>>> Alexander Terekhov <address@hidden> writes:
>>>
>>>> There is a ruling from the BGH (third level court which is akin to
>>>> SCOTUS apart from constitutional matters) regarding first sale aka
>>>> exhaustion doctrine.
>>>>
>>>> Consumer rights protection group sued the maker of
>>>> http://en.wikipedia.org/wiki/Half-Life_2 asking the court forbid to
>>>> suggest in a shrink-wrap EULA that online accounts created with one-time
>>>> key (the key comes with a copy of software/game) can not be sold by game
>>>> copy owner.
>>
>> [...]
>>
>>>> Here is the ruling:
>>>>
>>>> http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&Datum=Aktuell&Sort=12288&nr=52877&pos=4&anz=634
>>>>
>>>
>>> So, in English, the Freetards lost?
>>
>> Hm?  The "Freetards" would not be buying Half Life in the first place.
>
> They might second hand for next to nothing hoping to play it.
>
>> Also the "Freetards" don't rely on first sale rights at all regarding
>> their licensing.  Actually, Alexander relies on that in one of his
>> favorite anti-GPL fantasies.
>>
>> Consumers, primarily those of proprietary software, lost.
>
> How? The people who paid for the SW (and its development) got to play
> the game.

Wrong: if that would have been what the case was about, the outcome
would have been different.  The purchasers did not "get to play the
game": the whole point of the defense (which the court agreed with) was
that people paid for an _entry_ ticket to an _online_ game, and that it
was ok that this ticket was exhausted with the first user.

If you follow the defendants' and the courts' reasoning, it is exactly
_not_ the software in the packaged medium that people paid for, but
rather the software/community/identity provided by the online servers.

> Why do you think others should get to play it for next to nothing?

For the same reason that others get to read a book for next to nothing
once the people who paid for the book got to read it?

That's what first sale's right is all about.  Of course one can be of
the opinion that nobody but the original purchaser of some medium should
be allowed to derive temporary benefit from it.  But that's not how
copyright law currently works: people can very well resell their game
cartridges all they like, and indeed the court stated that they could
still do that.  It is just that without the possibility of activating an
online account with that cartridge, that's rather pointless.

> As I said : Freetards lost.

What else did you not understand?

> Tell me, do you video the movie when you pay to go to the cinema and
> then sell it on?

That would be a separate copy rather than the one you bought a ticket
for.  Do you destroy the copy in your head (which you paid for) every
time you went to the cinema so as not to accidentally tell others about
it?

It _does_ sound like you undergo frequent brainwashing, come to think of
it.

-- 
David Kastrup


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